Arkansas Senate Bills 668 and 741

Summary

Arkansas Senate Bill 668 would apply the state’s existing “harmful to minors” law to content distributed generally on the internet. Presently, Arkansas law specifically excludes from the law matter displayed, transmitted, received or stored on the internet or other network for the electronic dissemination of information.

Senate Bill 741 is very similar to S.B. 668. It would create a new section of the Arkansas code that would make it illegal to transmit “harmful to minors” material to a minor using a wireless communication device.

Status

The Arkansas legislature adjourned its 2011 session. S.B. 668 died in the Senate Committee on Judiciary. The committee recommended that S.B. 741 be held for further study.

Analysis

To the extent that S.B. 668 or S.B. 741 restrict harmful to minors material generally available on the internet, public listservs or public chatrooms, both bills are likely unconstitutional. There is a substantial body of case law striking down similar state and federal legislation that restricted such content on the internet because it places a burden on speech for adults.

Absent personal knowledge about a specific person, there is no certain way to know whether the person receiving the sexually frank material online is a minor or an adult. At the same time, anyone who makes material available on the internet should know that there could be minors accessing their content. As a result, the effect of banning the internet dissemination of material “harmful to minors” is to force a provider, whether a publisher or an online carrier, to deny access to both minors and adults, depriving adults of their First Amendment rights.

The only state laws that restrict access to content on the internet that have not been struck down in court were laws that were limited to speech illegal for minors that was intended to be communicated to a person the speaker has specific, rather than general, knowledge is a minor or believes to be a minor, and the speaker directed the speech to that person. States have also passed laws to outlaw such speech if it is tied to an otherwise illegal activity, such as luring or enticing a minor.

History – S.B. 668

On February 28, 2011, the bill was introduced [3] and referred to the Senate Committee on Judiciary.

On March 2, 2011, Media Coalition sent a memo [2] to the committee, explaining the constitutional issues with the bill.

On March 15, 2011, Media Coalition sent a second memo [1] to the committee, reiterating the constitutional issues.

The Arkansas legislature adjourned its 2011 session. The bill died in committee.

History – S.B. 741

On March 2, 2011, the bill was introduced [4] and referred to the Senate Committee on Judiciary.

On March 15, 2011, Media Coalition sent a memo [1] to the committee, explaining the constitutional issues with the bill.

On March 29, 2011, the committee recommended the bill be held for further study.